Toronto cannot make it a crime for homeless to sleep

Toronto may be headed for a costly constitutional legal challenge of its proposed Streets By-law because of an amendment that seeks to criminalize a biological activity associated with people who are homeless. The draft Streets By-law was supposed to be a simple harmonization of similar by-laws that were in force in the former municipalities that were amalgamated to create the City of Toronto. But a last-minute amendment to the draft by-law, introduced by Councillor Shiner after — and in spite of — public consultation and against the recommendation of city staff, seeks to make it illegal to “camp,” “dwell,” and “lodge” on city streets and sidewalks. “Anti-camping” provisions have been used by a number of municipalities in Canada and the United States to target people who are homeless.

People who are homeless face serious health challenges. The Street Health report, funded by the Wellesley Institute, notes that people who are homeless don’t face different illnesses than those who are properly housed — but people who are homeless face a greater burden from a wide range of physical and mental health concerns. A significant amount of research notes that people who are homeless experience a high rate of mental health issues, including chronic depression. Many of these health issues are triggered by, or made worse by, sleep deprivation and lack of even the most basic form of shelter.

“Housing first” is emerging in Toronto and throughout North America as the most effective way to end homelessness. Sometimes called “rapid re-housing,” the housing first model depends on a trusting relationship between the person who is homeless and the community worker. Punitive laws that criminalize activities associated with homelessness make it harder to reach and engage people who are homeless, and harder to assist them in making the transition to appropriate housing. No one would argue that makeshift shelters on city streets is an acceptable form of housing for people who are homeless, but harsh municipal by-laws targeting the homeless will make it harder to prevent and end homelessness.

FIVE THINGS YOU NEED TO KNOW

Here are five important observations that Toronto City Council, and all Torontonians, should consider as they review the proposal to add a controversial new anti-camping provision to the city’s harmonized Streets By-law:

ONE

The anti-camping rule will almost certainly expose the City of Toronto to a costly and time-consuming legal challenge that it is likely to lose.

In 2009, the British Columbia Supreme Court ruled that a similar by-law in Victoria was unconstitutional and a violation of the right to life, liberty and the security of the person as guaranteed by section 7 of Canada’s Charter of Rights and Freedoms. The US Ninth Circuit Court of Appeal made a similar ruling in 2006, striking down a municipal ordinance in Los Angeles. In both cases, the legal judgment was similar: The courts ruled that a municipality cannot ban an activity that is biologically necessary (sleeping with at least some modest form of shelter from the elements) if the number of people who are homeless exceeds the number of spaces in municipal homeless shelters. There is no reason to believe that Toronto will escape from a costly legal challenge to the anti-camping rule.

TWO

Harsh measures that criminalize activities associated with homelessness make it more difficult for street outreach professionals to assist people who are homeless.

Toronto has a capable group of outreach professionals who work for community agencies and also for the city. Their job is to connect with people who are homeless and assist them in making the transition to shelters and long-term housing. Trust is a key component in creating a successful relationship, and coercive laws make it harder to build and maintain trust. The people who are most vulnerable — those experiencing mental health issues or flee

ing domestic violence — may decide that in order to avoid legal prosecution, they must become less visible and therefore become harder to reach. They dig deeper into the urban infrastructure and outreach workers report that they are more difficult to find and to serve.

THREE

The anti-camping amendment violates the spirit of the harmonized by-law. The Streets By-law is part of a long-term process to harmonize the by-laws of all the former municipalities that were amalgamated to create the City of Toronto. There was no anti-camping rule in any of the former municipalities. Therefore, adding it under the guise of a harmonization of existing by-laws violates the spirit and practice of the harmonization process.

FOUR

The proposed anti-camping amendment runs counter to the public consultation process and the staff recommendation.

During the public consultation process, the City of Toronto received a number of informed submissions from experts who work with people who are homeless, and those who are knowledgeable about legal and practical issues regarding homelessness. Public input was unanimous in opposition to any anti-camping rule. In addition, city staff — including those who administer the city’s homeless programs — recommended against the addition of an anti-camping rule in the streets by-law. Adding in an anti-camping rule against the expressed views in the public consultation process and against the advice of staff shows disrespect for the value and importance of the public consultation process, good governance, and informed decision-making.

FIVE

The City of Toronto already has a wide range of powers under existing provincial and municipal laws and protocols to address homelessness, and a new prohibition on camping is not required.

Police and medical authorities already have the power, under the Mental Health Act, to detain a person who is homeless who may be an immediate danger to themselves or others. Other provincial and municipal laws, plus the Criminal Code, deal with threatening behaviour, obstruction of streets and a variety of nuisances. The City of Toronto has developed a protocol for its Streets to Homes program to work with people who are homeless in assisting them to move into shelters and appropriate housing. Additional criminal powers are not required, and, as already noted, may invite costly legal challenges and may also make it more difficult to help people who are homeless to become properly housed.